December 31, 2008
Part IV
Department of
Homeland Security
Coast Guard
33 CFR Part 155
Salvage and Marine Firefighting
Requirements; Vessel Response Plans for
Oil; Final Rule
DEPARTMENT OF HOMELAND SECURITY
Coast Guard 33 CFR Part 155
[Docket No. USCG–1998–3417]
RIN 1625–AA19 (Formerly RIN 2115–AF60) Salvage and Marine Firefighting Requirements; Vessel Response Plans for Oil
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
SUMMARY: The Coast Guard is amending the vessel response plan salvage and marine firefighting requirements for tank vessels carrying oil. These
revisions clarify the salvage and marine firefighting services that must be identified in vessel response plans and set new response time requirements for each of the required salvage and marine firefighting services. The changes ensure that the appropriate salvage and marine firefighting resources are identified and available for responding to incidents up to and including the worst case
discharge scenario.
DATES: This final rule is effective January 30, 2009, except for the amendment to § 155.1050, which is effective February 12, 2009. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register on January 30, 2009.
ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG–1998–3417 and are available for inspection or copying at the Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http:// www.regulations.gov, selecting the Advanced Docket Search option on the right side of the screen, inserting USCG– 1998–3417 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, or for questions regarding the Vessel Response Plan Program, contact Lieutenant Commander Ryan Allain at 202–372– 1226 or Ryan.D.Allain@uscg.mil. If you have questions on viewing the docket, call Ms. Renee V. Wright, Program
Manager, Docket Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION: Table of Contents
I. Abbreviations II. Regulatory History III. Background and Purpose IV. Summary of Changes from NPRM V. Discussion of Comments and Changes
A. Introduction B. General
C. Twenty-four-hour response time D. Need for the regulation
E. Applicability F. Incorporation by reference G. Compliance dates H. Definitions I. Response times 1. General
2. Timeframe too short 3. Timeframe too long
4. Planning or performance standards J. Use of resource providers during actual
incident K. Required services 1. Salvage 2. Firefighting 3. Other L. Funding agreements
M. Considerations for choosing resource providers
1. General
2. Coast Guard or third-party vetting 3. Use of public resources
N. Integration of the VRP into the Unified Command System/ICS
O. Worker health and safety P. Waiver provisions Q. Economic comments R. Environment comments S. Tribal Consultation T. Miscellaneous U. Beyond the scope VI. Incorporation by Reference VII. Regulatory Analyses
A. Regulatory Planning and Review (E.O. 12866)
B. Small Entities
C. Assistance for Small Entities D. Collection of Information E. Federalism (E.O. 13132) F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects
L. Technical Standards M. Environment
I. Abbreviations
Abbreviations Explanation ACP ... Area Contingency Plan. ANSI ... American National
Stand-ards Institute.
ASTM ... American Society for Testing and Materials.
BOA ... Basic Ordering Agreement. CONUS ... Continental United States. COTP ... Captain of the Port. EA ... Environmental Assessment. FONSI ... Finding of No Significant
Im-pact.
Abbreviations Explanation FOSC ... Federal On-Scene
Coordi-nator.
FWPCA ... Federal Water Pollution Con-trol Act.
ICS ... Incident Command System. IMO ... International Maritime
Orga-nization. LOI ... Letter of Intent. MARAD ... Maritime Administration. MFSA ... Maritime Fire and Safety
As-sociation.
NARA ... National Archives and Records Administration. NEPA ... National Environmental
Pol-icy Act.
NFPA ... National Fire Protection As-sociation.
NIMS ... National Incident Manage-ment System.
NPRM ... Notice of Proposed Rule-making.
NPV ... Net Present Value. NTTAA ... National Technology
Trans-fer and Advancement Act. NVIC ... Navigation and Vessel
In-spection Circular. OCIMF ... Oil Companies International
Marine Forum. OCONUS ... Outside the Continental
United States. OPA 90 ... Oil Pollution Act of 1990. OSHA ... Occupational Safety and Health Administration. OSRO ... Oil Spill Removal
Organiza-tion.
P&I ... Protection and Indemnity. PRA ... Programmatic Regulatory
Assessment. QI ... Qualified Individual. SERT ... Salvage Engineering
Re-sponse Team.
SOLAS ... International Convention for the Safety of Life at Sea, 1974.
STCW ... International Convention on Standards of Training, Certification and Watchkeeping, 1978. UCS ... Unified Command System. VRP ... Vessel Response Plan. VTS ... Vessel Traffic Service.
II. Regulatory History
On June 24, 1997, a notice of meeting was published in the Federal Register
(62 FR 34105) announcing a workshop to solicit comments from the public on potential changes to the salvage and marine firefighting requirements found in 33 CFR part 155.
The public workshop was held on August 5, 1997, to address issues related to salvage and marine firefighting response capabilities, including the 24- hour response time requirement, found at 33 CFR 155.1050(k), which was then scheduled to become effective on February 18, 1998. The participants uniformly identified the following three issues that they felt the Coast Guard needed to address:
(1) Defining the salvage and marine firefighting capability that is necessary for the plans;
(2) Establishing how quickly these resources must be on scene; and
(3) Determining what constitutes adequate salvage and marine firefighting resources.
A copy of the summary report generated from this meeting is included in the project docket where indicated under ADDRESSES.
Based on comments received during the workshop, the Coast Guard determined that it should better define the key elements within the
requirements. Regulatory language such as ‘‘a salvage company with expertise and equipment’’ or ‘‘firefighting capability’’ needed to be further specified before the Coast Guard could expect vessel owners or operators to comply with any related time requirements. Therefore, the Coast Guard determined that it should suspend the 24-hour response time requirement that stated: ‘‘identified salvage and firefighting resources must be capable of being deployed to the port nearest to the area in which the vessel operates within 24 hours of
notification’’ for plans that are
submitted (or resubmitted) for approval after that time. (33 CFR 155.1050(k))
On February 12, 1998, a notice of suspension was published in the
Federal Register suspending the 24- hour requirement scheduled to become effective on February 18, 1998, until February 12, 2001 (63 FR 7069) so that the Coast Guard could address issues identified at the public workshop through a rulemaking that would revise the existing salvage and marine
firefighting requirements.
On January 17, 2001, a second notice of suspension was published in the
Federal Register suspending the 24- hour requirement scheduled to become effective on February 12, 2001, until February 12, 2004 (63 FR 7069) because the potential impact on small businesses from this new rulemaking required the preparation of an initial regulatory flexibility analysis under the Small Business Regulatory Enforcement Fairness Act of 1996. This was not determined until a draft regulatory assessment was completed in November 2000.
On May 10, 2002, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Salvage and Marine Firefighting Requirements; Vessel Response Plans for Oil [USCG– 1998–3417] in the Federal Register (67 FR 31868). The 90-day comment period was to close on August 8, 2002. We received 104 letters commenting on the
proposed rule. The majority of these letters contained multiple comments.
During the comment period, we held four public meetings. On June 12, 2002, a notice of public meetings was
published in the Federal Register (67 FR 40254) announcing the dates and location for the first three public meetings:
• Texas City, TX, on July 9, 2002; • Philadelphia, PA, on July 17, 2002; • Seattle, WA, on July 25, 2002. On August 7, 2002, a notice was published in the Federal Register (67 FR 51159) announcing the extension of the comment period until October 18, 2002, and the date and location for a 4th public meeting:
• Louisville, KY, on September 26, 2002.
On January 23, 2004, a third notice of suspension was published in the
Federal Register, continuing the 24- hour requirement suspension until February 12, 2007 (69 FR 3236) because during the preceding three years, the Coast Guard had to redirect the majority of its regulatory resources to issue security-related regulations as required by the Maritime Transportation Security Act of 2002. As a result, we were unable to complete our review of the comments we received in response to the May 10, 2002 NPRM. Once NPRM comment review was done, we found that numerous public comments addressed environmental issues and we agreed that these comments had merit. As a result, a new Programmatic
Environmental Assessment (PEA) was drafted, solely for these salvage and marine firefighting revisions, to address these comments.
On January 3, 2006, a notice was published in the Federal Register (71 FR 125) requesting comment on a draft PEA.
On February 9, 2007, a fourth notice of suspension was published in the
Federal Register (72 FR 6168) continuing the 24-hour requirement suspension until February 12, 2009, to permit the Coast Guard to complete its work on the regulatory and
environmental assessments.
III. Background and Purpose
Requirements for salvage and marine firefighting resources in vessel response plans (VRPs) for vessels carrying group I–IV oils have been in place since February 5, 1993 (58 FR 7376). The existing requirements found at 33 CFR 155.1050 are general and only require that a planholder identify salvage and marine firefighting resources.
Additionally, they require that these resources are capable of being deployed to the port nearest the area in which the
vessel operates within 24 hours of notification by the planholder of an oil spill. The Coast Guard did not originally develop specific requirements because salvage and marine firefighting response resource requirements were considered unique for each vessel. The Coast Guard’s intent was to rely on the planholders to prudently identify contractor resources to meet their needs. The Coast Guard expected that the significant benefits of a quick and effective salvage and marine firefighting response would be sufficient incentive for industry to develop salvage and marine firefighting capabilities, similar to the development of oil spill removal organizations that was seen in the early 1990s.
Early in 1997, it became apparent that the expected salvage and marine firefighting capability development was not occurring. There was disagreement among planholders, salvage and marine firefighting contractors, maritime associations, public agencies, and other stakeholders as to what constituted adequate salvage and marine firefighting resources. There was also concern over whether these resources could be deployed to the port nearest the vessel’s operating area within 24 hours, even though the maritime industry had several years to develop these resources. Thus, this salvage and marine
firefighting rulemaking was initiated.
IV. Summary of Changes From NPRM
Each change made between the NPRM and the final rule is summarized and described below. The vast majority of changes were made in response to public comment and are discussed in more detail in the ‘‘Discussion of Comments and Changes’’ section of this preamble.
• We revised the incorporation by reference section (§ 155.140) by referencing the most recently available NFPA Standard or Guide for each of the four NFPA documents listed in the NPRM. Additionally, based on public comment, we added a fifth NFPA Standard (1005) to the list of documents incorporated by reference.
• We revised the Purpose of this subpart section (§ 155.4010) to address public comment by adding a new paragraph (b) to clarify that the response criteria specified in the regulations are planning criteria, not performance standards, and are based on
assumptions that may not exist during an actual incident, as stated in 33 CFR 155.1010.
• We revised the Who must follow this subpart? section (§ 155.4015) to read ‘‘You must follow this subpart if your vessel carries group I–IV oils, and
is required by § 155.1015 to have a vessel response plan.’’ to address public comment requests for clarity.
• We revised the When must my plan comply with this subpart? section (§ 155.4020) to address public comment requests to change the compliance date from 6 months to 18 months after publication of the final rule.
• We revised the definitions section (§ 155.4025) to address public comment by adding additional language to eight definitions: ‘‘Assessment of structural stability’’; ‘‘Contract or other approved means’’; ‘‘Funding agreements’’; ‘‘Marine firefighting’’; ‘‘On-site fire assessment’’; ‘‘On-site salvage
assessment’’; ‘‘Remote assessment and consultation’’; and ‘‘Resource provider’’. Additionally, we added four new definitions for ‘‘Boundary lines’’; ‘‘Captain of the Port (COTP) city’’; ‘‘Marine firefighting pre-fire plan’’; and ‘‘Primary resource provider’’.
• We revised the required pre- incident information and arrangements for the salvage and marine firefighting resource providers listed in response plans section (§ 155.4035) by deleting the referenced cite § 155.1045(c) from the text in § 155.4035(a). Section 155.1045 applies to ‘‘Response plan requirements for vessels carrying oil as a secondary cargo’’ and does not require a salvage and marine firefighting component.
• We changed the section titles (§ 155.4010 to § 155.4055) from the question format to a declarative statement format.
• We revised the Specialized Salvage Operations response timeframe
requirement (Table
155.4030(b)(1)(iii)(C)) for ‘‘heavy lift’’ service from 72/84 hours to a response time of ‘‘estimated.’’ Based on public comment, we determined that heavy lift services are not required to have definite hours for a response time. The planholder must still contract for heavy lift services, provide a description of the heavy lift response and an estimated response time when these services are required; however, none of the timeframes listed in the table in § 155.4030(b) will apply to these services.
• We corrected the Integration into the response organization paragraph (§ 155.4030(c)) by listing the appropriate cross reference cites §§ 155.1035(d), 155.1040(d) and 155.1045(d).
• We revised the Coordination with other response resource providers, response organizations and OSROs paragraph (§ 155.4030(d)) by adding text requiring that the information contained in the response plan must be consistent with applicable Area Contingency Plans
(ACPs) and the National Oil and Hazardous Substances Pollution Contingency Plan as found in § 155.1030(h).
• We revised the Ensuring firefighting equipment is compatible with your vessel paragraph (§ 155.4030(g)) to address public comment by adding text requiring a 20-minute minimum time criteria for the extinguishing agent.
• We added a new Other resource provider considerations section
(§ 155.4032) to address public comment that includes language in paragraph (a) regarding the use of service providers not listed in the plan.
• We moved the Worker health and safety section (old § 155.4030(i)) to § 155.4032(b) and added reference cites.
• We revised the Required pre- incident information and arrangements for the salvage and marine firefighting resource providers listed in response plans section (§ 155.4035) to address public comment by adding text to paragraph (b)(1) indicating that if the planholder’s vessel pre-fire plan is one that meets international standards, a copy of that specific fire plan must also be given to the resource provider. Additionally, we added a new paragraph (b)(3) regarding who must receive copies of the planholder’s vessel pre-fire plan.
• We revised the Response Time End Points requirements (Table 155.4040(c)) to address public comment for ‘‘heavy lift’’ service from ‘‘resources on scene’’ to ‘‘estimated,’’ to align with the response timeframe requirement in Table 155.4030(b)(1)(iii)(C).
• We revised the Ensuring that the salvage and marine firefighters are adequate section (§ 155.4050) to address public comment by revising
introductory language in paragraph (b) to emphasize the importance of the selection criteria, amending paragraph (b)(6) with updated NFPA Guide/ Standards, revised paragraph (b)(13) to include ‘‘in arduous sea states and conditions’’ to ensure that all expected weather conditions are addressed when selecting a resource provider for contract, adding paragraph (b)(14) on worker health and safety, and adding paragraph (b)(15) regarding a resource provider having familiarity with the marine firefighting and salvage operations contained in the local Area Contingency Plans for each COTP area for which they are being contracted.
• We added a Drills and exercises section (§ 155.4052) to highlight that Salvage and Marine firefighting components are part of the existing exercise requirements for vessels holding VRPs, as found in §§ 155.1060 and 155.1065.
V. Discussion of Comments and Changes
A. Introduction
We received 104 letters commenting on the proposed rule. The majority of these letters contained multiple comments. During the comment period, we held four public meetings—
• Texas City, TX, on July 9, 2002; • Philadelphia, PA, on July 17, 2002; • Seattle, WA, on July 25, 2002; and • Louisville, KY, on September 26, 2002.
The following is a summary of the comments received, both by letter and at the public meetings, and the changes made to the regulatory text since the NPRM was published. The items that address a general issue are grouped first, then by those that relate to a specific topic or provision in the regulatory text. B. General
In support of the proposed rule, seven comments were received that generally supported the rulemaking. One
commenter stated that both salvage and firefighting responses are significantly improved by timely reaction at the very early stages of an emergency. Three commenters pointed out that some ports have limited capability to conduct marine firefighting, and that the increase in capability these regulations would bring is especially important in the current port security climate due to possible acts of terrorism. One
commenter stated that the current U.S. salvage structure, if not given the support of a regulatory framework, such as these regulations, will fail in the long term. One commenter stated the rule will reduce confusion by helping ship owners understand what salvage services are truly required to be listed in their vessel response plans (VRPs).
In opposition to the proposed rule, we also received several comments that disagreed generally. Twelve
commenters stated that this rulemaking amounted to bad public policy. The Coast Guard disagrees and maintains that the regulation provides an
appropriate level of needed salvage and marine firefighting capability to mitigate or reduce pollution in the marine environment.
One commenter asked the Coast Guard to make substantial revisions to any proposed salvage and firefighting requirements it may impose. The Coast Guard acknowledges this request, but as the comment included no specific changes the commenter would find acceptable, the Coast Guard did not make changes in response to this comment. Where changes have been
made based on other comments, they are explained throughout this preamble.
One commenter stated that there is no reason to tie vessel salvage to pollution response. The Coast Guard disagrees in part. This rulemaking is based on steps that are necessary to mitigate the release of oil into the marine environment, thus avoiding the need for pollution
response. One way to reduce the need for pollution response is to ensure proper salvage procedures can be followed by ensuring (through contract) that service providers will be place in the wake of a marine casualty. In other words, this is a proactive rulemaking.
One commenter expressed the deep concern of the tank vessel industry over the direction the Coast Guard took in the NPRM, and urged the Coast Guard to give this issue special attention and ensure that the final result meets the tests of value-added, cost-effective, and common-sense rulemaking. The Coast Guard developed the NPRM and this final rule after considering numerous statutes and executive orders related to rulemaking. At the time of the NPRM, the Coast Guard did consider common- sence rulemaking practice and assessed the cost-effectiveness of the
requirements using reasonable
interpretation of available industry and spill data. We have also provided a similar assessment for the final rule. Assessments for the NPRM and this final rule are available in the docket as indicated under ADDRESSES.
Ten commenters suggest that the Coast Guard and the tank vessel industry get together and discuss the proposed rule in order to come up with livable alternatives. The Coast Guard agrees with the intent of this comment. After publication of the NPRM, the Coast Guard held four public meetings, and accepted public comments to ensure that all parties had the
opportunity to comment on the NPRM. We considered all comments received, and this final rule is a result of that effort.
One commenter stated that while the Coast Guard can meet with whomever it wants, the very carefully worded description of the meeting in the proposed rule sounded very much like the meetings should have been open to the public. The commenter added that the ‘‘Purpose’’ section lacks any indication that the Coast Guard actively sought out the views of owners and operators, noting that additional consultation with the affected
planholders prior to publication of the NPRM would have produced a sounder proposal and, most likely, a shorter regulatory process. The Coast Guard disagrees, and points to the August 5,
1997, public workshop that was held to formulate the basis for the NPRM. That workshop was structured to identify major issues concerning salvage and marine firefighting in the VRP context. To accomplish this, the 35 workshop attendees, invited from a cross section of the affected industries, were asked to list their top three issues concerning marine salvage and firefighting on an informal workshop survey form. A Coast Guard officer and a maritime law attorney, representing the Maritime Association of the Ports of New York and New Jersey, facilitated the
workshop. The Coast Guard announced this workshop in the Federal Register
on June 24, 1997, and invited all interested parties, including
planholders, to participate. In addition, four public meetings were held after issuance of the NPRM, and a lengthy public comment period was used to ensure all interested parties had a chance to contribute to the process of issuing a final rule.
One commenter considered it inaccurate for the Coast Guard to describe the workshop (referenced above) as reflecting a ‘‘uniform’’ industry request to the Coast Guard to promulgate detailed performance, instead of planning, standards
governing salvage operations. The Coast Guard disagrees that the workshop addressed performance standards; it did not. We were unable to locate the point in the NPRM where the Coast Guard made a statement such as that suggested by the comment. The response criteria specified in the regulations (e.g., quantities of response resources and their arrival times) are planning criteria, not performance standards, and are based on assumptions that may not exist during an actual incident, as stated in 33 CFR 155.1010. Failure to meet specified criteria during an actual spill response does not necessarily mean that the planning requirements of the Federal Water Pollution Control Act (FWPCA), OPA 90 and regulations were not met. The Coast Guard will exercise its enforcement discretion in light of all facts and circumstances. Nothing in this rulemaking introduces performance standards.
One commenter stated that any discussion of government action designed to create additional salvage and marine firefighting capacity in the United States must include some analysis of the factors that affect the current capabilities of salvors. The Coast Guard agrees in part. In addition to including salvage representatives in the public workshop and asking salvage industry leaders to complete workshop surveys regarding their capabilities, we
had in-depth discussions with salvage and marine firefighting industry leaders over various periods regarding the current salvage and marine firefighting capabilities and what would be the anticipated increase in salvage re- capitalization once the final rule was issued. This rule is intended to increase resource providers’ capabilities to the level necessary to handle emergency incidents prior to deterioration into worst case discharge scenarios; it will also increase the response capabilities necessary to keep ports and waterways open in a worst case discharge scenario, which might include a national security incident. The current capabilities, and factors that have or have not produced those capabilities, were sufficiently studied.
One commenter strongly urged the Coast Guard to use the tools that it has created and employ its superior
understanding of the maritime system to make informed, well-reasoned, and risk- based decisions in the context of this rule. We thank the commenter, and have determined that the extensive
groundwork done in conceiving and drafting this regulation has led to a fair, beneficial, and effective regulation.
Two commenters suggested a ‘‘placing the right people in the right place at the right time’’ approach instead of a new regulation. They noted this will allow plans to develop quickly and allow ship owners to take advantage of the best available assets as quickly as possible. The Coast Guard disagrees. This type of approach has had the opportunity to develop without new regulations ever since the Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101–380, 33 U.S.C. 2701 et seq.; 104 Stat. 484) was enacted. However, based upon resource
providers’ past performance from 1990 to 2002, it is unlikely that such an approach has been, or would be successful. Therefore, this regulation is necessary to ensure resources are available when needed. However, this regulation allows for deviations from the VRP if required and approved by the Federal On-Scene Coordinator (FOSC). C. Twenty-Four-Hour Response Time
One commenter stated that the Coast Guard should permanently revoke the 24-hour response time currently provided for in 33 CFR 155.1050(k)(3), which has been suspended since February 12, 1998. Five commenters stated that the 24-hour response times are wholly unacceptable and inadequate for marine firefighting. The Coast Guard agrees with the commenters and we removed the 24-hour response time requirement in this final rule.
One commenter asked the Coast Guard to withdraw this proposed rule and permanently revoke the 24-hour response time currently provided for in 33 CFR 155.1050(k)(3), which is under temporary suspension. The Coast Guard disagrees; such an action would remove all planning standards for salvage and firefighting from the regulation. The planning standard timeframes included in this final rule were determined to be realistic standards for planholders and resource providers to use in developing their contractual arrangements, and the timeframes will ensure a proper response will be available to avoid a worst case discharge scenario.
One commenter stated that they understood the Coast Guard was concerned about a lack of specificity in the suspended 33 CFR 155.1050(k)(3), which requires 24-hour response times for an emergency incident. However, the commenter argued that the NPRM’s identification of the expertise a planholder should be prepared to have on scene largely resolves that issue. The commenter added that, with the exception of heavy lift and sub-surface product removal, the salvage
capabilities could fall within the 24- hour requirement. The Coast Guard disagrees. The required timeframes for salvage are reasonable and necessary to ensure any incident emergency resource provider is contracted for and able to arrive on scene at the earliest possible opportunity. These timeframe
requirements will improve the chances that the vessel crew, planholders, and resource providers will keep an incident from deteriorating into a worst case discharge over the initial 24 hours. D. Need for the Regulation
Six commenters stated that the existing regulations satisfy the need for salvage and firefighting resources. They stated there is no casualty evidence to indicate that the present regulations fail to satisfy the need for timely salvage and/or firefighting resources, and that these regulations are unjustified and demonstrably unfair to the entire tanker industry serving the United States. One commenter stated that they felt that the Coast Guard’s regulatory assessment, as written in the NPRM, will only have a five-percent impact over current performance measures. The Coast Guard disagrees. The requirements within this regulation are reasonable and valid for ensuring the identification and availability of response capabilities for responding to incidents up to and including a worst case scenario as required by OPA 90. The amount of oil spilled in past years, while an important factor in developing these regulations,
was not the overriding reason for this rulemaking. Rather, consistent with OPA 90, the overriding reason for this rulemaking is to define the salvage and marine firefighting capability that is necessary in the VRP (Table 155.4030(b)), establish how quickly these resources must be on-scene, and determine what constitutes adequate salvage and marine firefighting resources as found in § 155.4050.
Two commenters stated that there were no obvious instances where the timeliness or lack of salvage or firefighting capabilities reduced the effectiveness or the outcome of an oil spill response, and they recommended delaying action on the rule until they have had an opportunity to assess whether tank vessel casualty history warrants a change in the current tank vessel salvage and marine firefighting requirements. The Coast Guard understands the issues raised by these commenters, but this regulation is written to ensure response capabilities are identified and available for responding to incidents up to and including a worst case discharge scenario as specifically required in OPA 90:
Section 4202 * * * (5) TANK VESSEL AND FACILITY RESPONSE PLANS., (A) The President shall issue regulations which require an owner or operator of a tank vessel or facility described in subparagraph (B) to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance. [See 33 U.S.C. 1321(j)(5)]
In essence, while the number of incidents and amount of oil spilled into the water has decreased over the years since OPA 90 was enacted, the law still requires identifying and employing prevention methods for a worst case discharge scenario.
One commenter stated that if one takes the National Research Council’s 1994 Marine Board Report, ‘‘A Reassessment of the Marine Salvage Posture of the United States’’ in its entirety, it provides ample evidence for not implementing this rule. The Coast Guard disagrees. The information presented in the report could be used to both support and counter arguments for this regulation. The Coast Guard considers the requirements in this regulation reasonable and valid for ensuring response capabilities are identified and available to respond to incidents up to and including a worst case discharge scenario, as required by OPA 90. While this report was taken into consideration, numerous other sources including workshops, research,
public meetings, and consultations with various representatives of industry were used to formulate this rulemaking.
One commenter stated that the Marine Board’s Committee on Marine Salvage Issues (cited above), particularly its assessment of the salvage industry, appears to have been a principal motivating factor behind the NPRM. Two commenters stated that the Marine Board Report was heavily relied on by the drafters of this rule. The Coast Guard disagrees. As stated above, this report was taken into consideration, as were numerous other sources, including workshops, research, public meetings, and consultations with various
representatives of industry were used to formulate this rulemaking.
Three commenters expressed concern that the Coast Guard is forging ahead without having gathered and thoroughly assessed all available relevant data. They also stated that either we missed some very crucial data, or our
assumptions are seriously flawed. The Coast Guard disagrees. The data used to develop this regulation has come from extensive research, studies, a public workshop, review of published works, and numerous reference materials including National Fire Protection Association (NFPA) documents and salvage and marine firefighting case histories. In total, the Coast Guard has been studying this salvage and marine firefighting issue since 1992, long before the issuance of the NPRM. Since the NPRM was published, we have held four additional public meetings that were very well attended by members representing all sides of the issues under discussion. After the public comment period closed, we received and reviewed over 1,000 comments on the NPRM. This regulation meets the needs of the public and maritime industry.
One commenter stated that the present salvage capacities accurately reflect the need and scope of those services and a rule intended to sustain salvage capacity at a level above or different than that justified by casualty data and economics is costly and ill conceived. The Coast Guard disagrees. Section 4202(a) of OPA 90 and amended § 311(j) of the FWPCA (33 U.S.C. 1251– 1376) outline the requirement to prepare and submit a written response plan for a worst case discharge scenario of oil, and this regulation was designed to satisfy those requirements. While this regulation might have the effect of sustaining or raising the level of salvage and marine firefighting resources in place, it was not written for, or intended to, have that effect beyond the statutory requirements.
One commenter noted that the Coast Guard has acknowledged that crew actions and salvage response efforts have resulted in substantial prevention of oil spillage, even in the most severe accidents. Another commenter stated that the highly prescriptive approach in the NPRM contradicts the tank vessel industry’s improved incident record. The Coast Guard agrees that oil-spill volume has decreased significantly since the implementation of oil-spill regulations and innovative measures taken by the tank vessel industry to reduce spills. However, this regulation was written to fulfill OPA 90
requirements of adequate salvage and marine firefighting response capabilities for up to and including worst case discharge scenario incidents, including a discharge resulting from fire or explosion; it was not written in response to the amount of oil spilled in U.S. waters since 1990.
Two commenters stated that OPA 90 did not grant the Coast Guard authority in this area, and requested that the Coast Guard carefully review the Act and specify where the authority to promulgate the proposed revision is located. The commenters stated that the Coast Guard should not promulgate these regulations if it is lacking
authority to take such action. The Coast Guard strongly disagrees that we have no authority to promulgate these regulations. The Coast Guard was delegated authority pursuant to Executive Order 11735, as outlined in the authorities section of the regulation. Executive Order 11735 states:
The Secretary of the Department in which the Coast Guard is operating is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the following: * * *
(2) the authority of the President under subsection (j)(1)(C) of section 311 of the act, relating to the establishment of procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and transportation-related onshore and offshore facilities, and to contain such discharges.
In addition, the requirements of § 4202(a) of OPA 90 and amended § 311(j) of FWPCA, outline the requirement to prepare and submit a written response plan for a worst case discharge of oil. See 33 U.S.C. 1321(j)(5). Part of such a worst case discharge scenario would include firefighting and salvage operations; therefore it is necessary, under the law, that the VRPs include these elements.
E. Applicability
One commenter stated that careful consideration should be given to bareboat-charter operators, because such owners should not have to pay for the negligence of individuals renting vessels under those types of agreements. The Coast Guard disagrees. Part 155 of 33 CFR requires that the ‘‘owner or operator’’ prepare and submit a VRP to the Coast Guard. The matter of who submits the VRP is a contractual agreement to be determined by the owner or operator—he or she is free to include preparation of this VRP as part of the terms of the bareboat charter. Additionally, in § 155.1020, the definition for ‘‘contract or other approved means’’ states, in part, that it is: ‘‘a written contractual agreement between a vessel owner or operator and an oil spill removal organization’’ and also defines ‘‘operator’’ as a:
Person who is an owner, a demise charterer, or other contractor, who conducts the operation of, or who is responsible for the operation of a vessel.
It is not the Coast Guard’s intent to dictate the exact contractual
arrangement to meet the intent of this regulation, only to ensure the
requirement is met to enhance safety. One commenter stated that the applicability of 33 CFR 155.1015 should remain exactly as written, because the exemptions written into the subpart were done as part of a lengthy and open period of public discussion, and that any changes would circumvent the normal public discussion process. The Coast Guard agrees and has not revised the tank vessel response plan
applicability section of § 155.1015. One commenter stated that vessels, such as shale barges and liquid-mud barges, should not be part of the current proposed rulemaking. The Coast Guard agrees as these vessels, while required to have VRPs under the applicability regulations found in 33 CFR 155.1015 and 155.1045 as vessels carrying oil as a secondary cargo, are exempted by § 155.1045 to list a salvage and marine firefighting resource provider in the VRP.
Two commenters urged the Coast Guard to coordinate with the Canadian Coast Guard on this rulemaking. The Coast Guard agrees. There are, and will be, continuing efforts of coordination and cooperation between the U.S. and Canada on maritime issues of interest to both countries, and the vessel traffic service (VTS) agreement in the Juan de Fuca region will remain in place. Any vessels, regardless of their country of origin, are subject to this rulemaking
when they fall under the applicability as found in 33 CFR 155.1015(a).
We received 65 comments criticizing the fact that this regulation was written to apply only to oil-carrying vessels. At the time this NPRM was issued, the Coast Guard did not have legislative authority to require VRPs for nontank vessels. In the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108–293), Congress gave us the authority to do so by stating:
The President shall also issue regulations which require an owner or operator of a nontank vessel to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil. (Section 701 of Pub. L. 108–293).
Since then, we have issued NVIC #01– 05, Change One, ‘‘Interim Guidance for the Development and Review of Response Plans for Nontank Vessels.’’ This circular provides guidance to owners and operators of nontank vessels for preparing and submitting VRPs for responding to a discharge or threat of a discharge of oil from their vessels. A nontank vessel is defined as a self- propelled vessel of 400 gross tons or greater, other than a tank vessel, which carries oil of any kind as fuel for main propulsion and is a vessel of the United States or operates on the navigable waters of the United States. For more information, the applicable Coast Guard Navigation and Inspection Circular (NVIC) #01–05, Change One, ‘‘Interim Guidance for the Development and Review of Response Plans for Nontank Vessels’’ is available on the World Wide Web at http://www.uscg.mil/hq/g-m/ nvic/.
F. Incorporation by Reference One commenter stated that the standard found in the International Convention for the Safety of Life at Sea treaty (SOLAS), 1974, Chapter II–2, Regulation 16, should be required for § 155.4030(g). The Coast Guard disagrees. SOLAS chapter II–2, regulation 16 (2000 Amendments) addresses ‘‘Fire Safety Operational Booklets’’ and procedures for cargo tank purging. In the ‘‘Fire Safety Booklet,’’ section 16.2, there is no mention of types and amounts of extinguishing agents needed on board the vessel. The SOLAS regulation doesn’t include extinguishing agent requirements essential to adequate planning for marine firefighting, therefore
§ 155.4030(g) remains unchanged in this final rule.
Three commenters stated that application rates for foam should at least be consistent with NFPA 11 and
11A or other recognized standards. The Coast Guard disagrees. Section
155.4030(g) was written to meet the quantity of foam requirements in the existing 46 CFR 34.20–5 and Coast Guard NVIC #6–72, ‘‘Guide to Fixed Fire-Fighting Equipment Aboard Merchant Vessels’’. These requirements are for the vessel’s internal firefighting systems and external resource
requirements should be compatible with the existing system capacities required on the vessels.
One commenter stated that the requirement to develop the fire plan in accordance with the NFPA standard is not practical and offers little benefit. They suggested that all vessels (SOLAS as well as non-SOLAS) be required to carry a SOLAS fire plan. The Coast Guard disagrees. Another commenter stated that if a vessel meets the guidelines of NFPA 1405 for a pre-fire plan by means of another document, such as a SOLAS fire plan, a
requirement to attach it to the VRP is needed. The Coast Guard agrees that the NFPA pre-fire plan standards align with the SOLAS fire plan requirements to a degree that meets the intent of these regulations. We added wording to allow SOLAS vessels to use their SOLAS fire plans in lieu of a fire plan developed under NFPA 1405 to § 155.4035(b)(1).
Three commenters stated that NFPA is currently working on a Professional Qualification Standard for Marine Firefighters that should be noted as incorporated by reference when published, as it would eliminate the need to rewrite the regulation when it is promulgated. The Coast Guard agrees that the new qualification standard, issued in July of 2007, will be beneficial under § 155.4050, and it has been incorporated by reference into this regulation.
Five commenters stated that NFPA 1405 is a guide for marine firefighting training and not a standard. The Coast Guard agrees and has amended the wording in §§ 155.4035(b)(1) and 155.4050(b)(6) to reflect this. However, incorporating NFPA 1405 into the regulation is still considered essential by the Coast Guard.
One commenter asked that the following NFPA documents be adopted in the proposed rulemaking: NFPA 1001 (Fire Fighter Professional
Qualifications), NFPA 1021 (Fire Officer Professional Qualifications), NFPA 1405 (Land-Based Fire Fighters Who Respond to Marine Vessel Fires), and NFPA 1561 (Emergency Services Incident
Management System). The Coast Guard agrees. Those materials, which were proposed for incorporation by reference in the NPRM, are retained in the final
rule, and the newly issued NFPA 1005 (Standard on Professional Qualifications for Marine Fire Fighting for Land-Based Fire Fighters) has also been
incorporated by reference in §§ 155.4035 or 155.4050.
In addition, more information on the Incident Management System may be found by going to the Coast Guard’s ‘‘Homeport’’ Web page, http:// homeport.uscg.mil/mycg/portal/ep/ home.do, and search for ‘‘NIMS/ICS’’.
Three commenters stated that firefighting personnel protective equipment should meet NFPA 1971, 1972, 1973, 1974, 1976, 1981, or a recognized equivalent. While standards for protective equipment are important, it is beyond the scope of this regulation to require using specific equipment in response operations. Therefore, the suggested standards were not incorporated.
In addition to the changes stated above, the Coast Guard is amending § 155.140 by incorporating by reference the most recent edition of each relevant NFPA document. Since marine
firefighting is a dangerous and complex activity, this revision will help ensure that the most current methods and practices are employed for planning and responding to a marine fire.
G. Compliance Dates
Three commenters stated that if the regulations are enacted, planholders will be hard-pressed to identify and qualify resource providers, negotiate with resource providers, get contracts in place, prepare the various plans, and submit the VRP to the Coast Guard. The commenters added that the Coast Guard does not have the resources to review the VRPs in a timely manner. They suggested that, if the NPRM is not withdrawn, the Coast Guard should modify the regulation so that VRP elements are submitted in stages. They further suggested that planholders be permitted to submit completed VRPs with named resource providers with a letter of commitment only, no contract, and without regard to response times. The Coast Guard agrees in part and has amended § 155.4020 to extend the deadline for submitting the VRP to 18 months after publication of this final rule. The Coast Guard does not agree with having the planholders submit VRPs in stages or without contracts with resource providers in place. We
determined that 18 months is adequate to have these required contractual arrangements in place. Additionally, the Coast Guard has already begun to take the influx of VRPs into consideration for internal staffing needs.
Three commenters did not feel that requiring some plan holders to list multiple providers for their entire area of operations is unreasonable and a reason to delay these regulations. The Coast Guard agrees because planholders will have 18 months from the date of issuance of this final rule to comply, which is an adequate time period for planholders to list all of their resource providers.
H. Definitions
One commenter stated that the proposed definition of ‘‘contract or other approved means’’ is unnecessary, inappropriate, and extremely confusing to planholders, and that the salvage and firefighting requirements are a part of the tank VRP regulations. They feel the existing definition of ‘‘contract or other approved means’’ (found in 33 CFR 155.1020) has worked well and should be applied throughout the regulations. The Coast Guard disagrees. The definition found in 33 CFR 155.1020 is written specifically, and has numerous references to, oil spill removal
organizations. The definition in § 155.4025, written specifically for the salvage and marine firefighting portion of part 155, is sufficient and we have not made any changes to it. As noted below, however, the definition in § 155.4025 does not substantially differ from § 155.1020.
Two commenters stated that the proposed § 155.4025 creates a definition of ‘‘contract or other approved means’’, which is substantially different from the existing definition of this term in 33 CFR 155.1020. They noted that the creation of dual definitions and dual regulatory standards is bad rulemaking, particularly when the conflicting definitions are in the same set of regulations. They expressed a
preference for the definition appearing in § 155.1020, stating that it has proven to be appropriate and effective. The Coast Guard agrees in part. While there are two separate definitions, the definition in § 155.4025 does not substantially differ from § 155.1020. Therefore, this definition suffices as written. We have, however, added text into the written definition to clarify that if the vessel owner or operator has personnel, equipment, and capabilities under their direct control, they need not contract for those items with a resource provider.
Ten commenters requested that we clearly define ‘‘COTP city’’, as the current use in the regulation is confusing and may not be effective for determining requirements. The Coast Guard agrees and has added a definition of ‘‘COTP city’’ in § 155.4025.
One commenter stated that the definition of ‘‘emergency lightering’’ should be included in § 155.1020. The commenter also suggested greater use of cross-referencing. The commenter references a subpart that is not covered by this rulemaking. However, the Coast Guard will keep this suggestion under advisement should rewriting the applicable subparts in a future rulemaking become necessary.
One commenter stated that the definition of ‘‘emergency lightering’’ should not include portable barges or shore-based portable tanks. The Coast Guard disagrees. These methods of emergency lightering are two of many different techniques that may be used in an emergency lightering response. The definition includes the phrase ‘‘or other equipment that circumstances may dictate’’ to allow the planholder and resource provider to use the best methods for each particular incident.
Three commenters recommended rewording the definition for ‘‘external vessel firefighting systems,’’ while giving no suggestions on how it should be defined. The definition as written is sufficient; therefore, no revision has been made.
One commenter stated that in the definition of ‘‘external vessel firefighting system,’’ airplanes and helicopters should be deleted because they are not applicable to shipboard firefighting. The Coast Guard disagrees. We feel air assets can be integral to shipboard-firefighting operations in delivery of needed firefighting supplies and equipment. However, these regulations do not require them to be provided. That is a decision left to the planholder and resource provider to address. Therefore, we did not revise the definition.
One commenter stated that the definition of ‘‘funding agreement’’ is not necessary. The Coast Guard disagrees; the definition is necessary to ensure resources are available and dispatched in a timely manner. This agreement must be part of the contract or other approved means that ensures response resources will support the vessel’s VRP. While the funding agreement might not be part of the VRP, all such agreements that support a particular VRP must be reviewed by the USCG prior to approval.
One commenter suggested that the definition of ‘‘marine firefighting’’ be reworded to eliminate ‘‘actual’’ and ‘‘potential’’ from the text. The Coast Guard disagrees in part, recognizing that there might be scenarios where response to a potential fire (volatile oil spilled on deck but not yet ignited, for example) might differ from an actual fire event.
However, we have removed the word ‘‘danger’’ from the definition for clarity and to match the wording in
§ 155.4035(b)(2).
Two commenters stated that there needs to be a definition for ‘‘marine firefighting plan.’’ They recommended that the VRP be consistent with the National Incident Management System (NIMS)/Incident Command System (ICS) incident plan content and formats. The Coast Guard believes the
commenters meant the marine
firefighting pre-fire plan as required by § 155.4035(b) and agrees. We have added the definition of a marine
firefighting pre-fire plan into § 155.4025. The Coast Guard does not agree,
however, that the VRP needs to be consistent with the NIMS/ICS incident plan. We determined that the Unified Command has the responsibility of drafting the incident plan during the actual incident dependent on actual circumstances, not on pre-incident planning.
One commenter asked that the terms ‘‘marine firefighting team’’, ‘‘marine firefighting provider’’, and ‘‘marine firefighting training’’ be better defined. However, the commenter did not explain why or how or provide any suggestions. As a result, the Coast Guard has determined that the definitions and references in the text, as written, suffice for this rulemaking.
One commenter recommends deleting the ‘‘offshore area’’ definition from subpart I, § 155.4025, because it is already included in subpart D, § 155.1020. The Coast Guard disagrees because readers of subpart I will find this definition more conveniently in that subpart than in a preceding one.
One commenter stated that the definition for ‘‘on-site fire assessment’’ requires a marine firefighting
professional to also consider the vessel stability and structural integrity, and since vessel stability and, in particular, structural integrity is a separate profession from firefighting, it is unreasonable to expect a professional firefighter to have much knowledge of these subjects. The Coast Guard agrees and has amended the text in § 155.4025 to:
Control and extinguish a marine fire in accordance with a vessel’s stability and structural integrity assessment if necessary.
One commenter stated that the definition for ‘‘other refloating methods’’ should be deleted or redefined, because most refloating efforts will be assisted by the tide and the specific time requirements listed in Table 155.4030(b) are not really applicable. The Coast Guard disagrees
and will retain the definition as written. The timeframe required in Table 155.4030(b) is for the salvage plan to be approved and for having the resources required for refloating on board, not a timeframe for the vessel to be refloated.
One commenter stated that
§ 155.4030(a) requires the identification of a ‘‘primary resource provider’’ for each Captain of the Port (COTP) zone in which the vessel operates, but that the term is not defined. The commenter recommended adding the word ‘‘primary’’ to the definition for
‘‘resource providers’’ or clearly defining the distinction between the ‘‘primary resource provider’’ and the ‘‘resource provider’’. The Coast Guard agrees and has clarified this issue by adding a definition for ‘‘primary resource provider’’ to § 155.4025.
Three commenters stated that the definition for ‘‘remote assessment and consultation’’ needs to be more specific on who can be contacted, as the current definition could be construed to include administrative or support personnel that would be unable to make effective determinations on the appropriate course of action and initiation of a response plan. The Coast Guard agrees and has amended the definition in § 155.4025 to read:
The person contacted must be competent to consult on a determination of the appropriate course of action and initiation of a response plan.
One commenter pointed out that the definition of ‘‘resource providers’’ includes the phrase ‘‘as long as they are able and willing to provide the service needed’’ in the second sentence, and that it should be removed. The Coast Guard agrees in part and has amended the definition to refer to the limitations for public marine firefighters as listed in § 155.4045(d).
Seven commenters asked that the definition for ‘‘resource provider’’ be rewritten to include reference to the training and qualification criteria in § 155.4050. The Coast Guard agrees and has amended the definition.
One commenter considers the definition of ‘‘salvage’’ incorrect, because the National Academy of Science/Marine Board ‘‘Reassessment of the Marine Salvage Posture of the United States’’ (1994) defines salvage as:
a commercial effort [that] traditionally has focused on the saving of property ships and cargo.
The commenter suggested that perhaps the definition should be for ‘‘salvage services’’ instead of ‘‘salvage.’’ The Coast Guard disagrees. In the book ‘‘Modern Marine Salvage’’ by William I. Milwee (1996, Cornell Maritime Press,
Inc.), which is authoritative and widely accepted in the industry, salvage is defined as:
Saving property at risk at sea and reducing environmental damage, and that salvage is all the actions taken aboard and ashore to resolve a marine casualty and to save property at risk.
The definition as written reflects this and therefore no change has been made.
One commenter requested changing the existing definition of ‘‘salvage’’ in § 155.4025 to read:
To assist a vessel who has suffered damage or is in danger of suffering damage to prevent or reduce loss.
For the reasons described above, the Coast Guard disagrees and will leave the definition as written.
I. Response Times 1. General
There were four comments asking what triggers the activation of the response plan. The response plan is activated once the master of the vessel has determined that the resources and personnel available on board cannot meet the needs of an actual or potential incident. The response timeframes listed in Table 155.4030(b) start when anyone in the response organization receives notification as stated in § 155.4040(b).
One commenter stated that the generic response times in the ‘‘Table of salvage and marine firefighting
services’’ are not always appropriate to local situations, such as those on the west coast, Alaska, and Hawaii. They recommended the Coast Guard evaluate the entire U.S. coastline, including Alaska and Hawaii, to determine whether the offshore areas, as required by this rulemaking, provide adequate coverage. The Coast Guard agrees in part. Table 155.4030(b) was developed to target COTP cities that cover the major high-traffic ports outside the continental U.S. (OCONUS). Our analysis for the proposed rule showed that it would be cost prohibitive to cover all offshore areas for the OCONUS locations. All continental U.S. (CONUS) coastlines are covered by this final rule and this rule does not impose any additional capital requirements on industry. Table 155.4030(b) shows the timeframe requirements for CONUS and OCONUS response activity both within 12 miles of a COTP city, and from 12 to 50 miles of a COTP city.
One commenter recommended different planning response times for high-volume ports and non-high-volume ports similar to the spill response planning standards. The Coast Guard
disagrees. This rulemaking was written to provide uniform response timeframes for all the shorelines and port cities of the U.S., emphasizing protection of vessels during underway transits where most salvage and/or marine firefighting incident response efforts would be needed. It differs from the
abovementioned standards that were written to address the recovery of oil already released, which most often happens in or around port facilities during transfer operations at dockside in high-volume ports.
Two commenters questioned the justification for specifying whether particular equipment and expertise must be on scene in say, 12 hours, as opposed to 18 hours, given that every salvage operation is different depending on the circumstances of the casualty. The Coast Guard disagrees in part. We acknowledge that each incident will differ in circumstances, and that is why this rulemaking incorporates planning standards in lieu of performance standards. The timeframes were determined to be realistic standards for planholders and resource providers to meet when developing their contractual arrangements.
One commenter stated that the proposed regulations generally do a good job of identifying the services necessary, but there are significant sequencing and timing issues that compromise the proposed regulations to the point that compliance will be impossible. The Coast Guard disagrees because compliance with the planning standards as listed will be achievable, if not within the compliance date of this rulemaking, certainly within the waiver periods as outlined in § 155.4055(g).
One commenter stated that imposing strict response times will force a significant expansion of the resource base of dedicated professional salvors, and that as this resource base expands, it will not sit idle in warehouses or at dockside, but will enter the marketplace to compete for all available business to which it is suited. The Coast Guard neither agrees nor disagrees with this comment. We note, however, that what resource providers do with their resources when not responding to an incident is beyond the scope of this rulemaking.
2. Timeframe Too Short
Three commenters stated that the one- hour timeframe for remote assessment and consultation should be four hours. The Coast Guard disagrees. The criteria for remote assessment and consultation are that the salvor is in voice contact with the qualified individual, operator, or the master of the vessel. This
qualified individual should plan to make voice contact via cell phone or radio within the one-hour response timeframe.
One commenter stated that placing the proposed time constraint of 16 hours on the salvage team to produce a written salvage plan is not necessary and may be counterproductive. The commenter feels that this time constraint, combined with factors such as the time of day the incident occurs and travel time, could unnecessarily result in poor decisions made as a result of being rushed or having insufficient time to gather information. The Coast Guard disagrees, but also reiterates that the timeframes listed in Table 155.4030(b) are planning standards and not performance
standards. We understand that the first submittal of a salvage plan to the Incident Commander might not be the final plan after all factors are considered and that, as in any incident response, circumstances will dictate the development and execution of daily incident action plans. It is entirely feasible that with proper pre-planning and consultation between all parties involved, a suitable salvage plan can be developed in the published times.
Two commenters stated that the attempt to control the on-site salvage assessment, as found in Table
155.4030(b), and succeeding portions of the salvage effort by placing set time limits on the initiation of the various stages may be counterproductive to the overall effort. The commenters also asserted that the accuracy and
timeliness of the ongoing assessments of structural integrity and stability will not be aided by having a set time limit imposed. The Coast Guard disagrees. It is imperative that the planholder have contractual arrangements in place to ensure a minimum level of salvage expertise, above that of the master and crew, will be on board the stricken vessel in a minimum amount of time. We understand that after this first response by the contracted salvor, a more specialized area of expertise may be needed and, if so, the planholder can arrange for such specialized expertise. The burden of providing capable salvor expertise in the required timeframe is on both the planholder and the resource provider. It is both parties’
responsibility to jointly plan for and anticipate likely scenarios in which the salvor’s services would be needed.
Two commenters stated that the proposed six-hour response timeframe (for incidents up to 12 miles from the COTP city) and the 12-hour response timeframe (for incidents up to 50 miles from the COTP city) for on-site
suppression services presumably would apply in situations where local fire personnel are not available and the firefighting representatives must travel from the service provider’s headquarters to the vessel. Under these
circumstances, the commenters believe the proposed timeframes for this to take place are not reasonable or likely achievable. The Coast Guard disagrees. The timeframes listed for on-site fire assessment are achievable either by using local fire personnel or by
contracting with resource providers that can meet the planning criteria. Should there not be a resource provider that can meet the criteria in that specific
geographical area, § 155.4055 provides for a temporary waiver request to allow time to address those shortfalls.
One commenter stated that in operating areas where firefighting tugs may not be available, the ability to meet the proposed timeframe for ‘‘External firefighting systems’’, as found in Table 155.4030(b), will be limited by the amount of foam that can be stockpiled and the availability of nearby air cargo facilities. The Coast Guard disagrees in part. We understand that meeting the requirements will take a concerted effort by planholders and resource providers to ensure an adequate supply of foam is on hand, but it can be achieved within the timeframes listed. Resource providers and planholders will have to take a proactive stance in regards to ensuring adequate amounts of marine- firefighting extinguishing agents are available and should consult with port partners to ensure that appropriate firefighting responses will occur.
Two commenters stated that the timeframes for remote assessment and consultation, assessment of structural stability, external emergency transfer operations, and completing a salvage plan ignore numerous other demands, and that applying arbitrary time limits to inherently variable situations does not achieve the goal of the rulemaking. The Coast Guard disagrees. We have written Table 155.4040(c) specifically to allow flexibility for these services. For example, Table 155.4040(c) lists the ending for response time assessment of structural stability when the ‘‘Initial analysis is complete.’’ We understand and have taken into consideration that these services will be progressive. The specific response times are planning standards based on a set of assumptions made during the development of this regulation. We understand that these assumptions may not exist during an actual incident, but the use of these timeframes as planning standards is valid and will remain unchanged.
Two commenters stated that emergency lightering differs from an external transfer operation in that the cargo or bunkers are transferred to another vessel or to a land-based receiver (rather than to another location on the damaged vessel). The major component of offshore lightering, assuming that the portable pumps have arrived on scene, is the receiving vessel, and the use of that equipment must be guided by the approved salvage or lightering plan. The Coast Guard agrees in part, but as this comment was not specific in its opposition to the
timeframe requirement the Coast Guard cannot respond further. However, we note that the requirement for emergency lightering, having the equipment on scene and alongside the stricken vessel (§ 155.4030(f)), is written such that it follows the requirement for a salvage plan by six hours specifically so that the emergency lightering can be
accomplished in accordance with the salvage plan’s direction.
Two commenters asserted that the assumption that re-floating methods such as pontoons or airbags could be assembled and delivered to the casualty in the proposed timeframe as found in Table 155.4030(b) is not reasonable as such an assumption makes no allowance for the planning and
engineering effort that must accompany any prudent attempt to apply external buoyancy to a damaged vessel. The commenters argued that the capability to provide these types of services should be included in an assessment of a salvage service provider, but that having it mandated within a certain timeframe takes it out of the context of the salvage plan. The Coast Guard disagrees in part. The response time ends when the salvage plan is approved by the FOSC and the needed resources are on the vessel, not when an attempt is made to refloat the vessel. This allows for the discretion the commenter calls for when actually attempting to refloat the vessel.
Two commenters stated that there is no way of knowing prior to the incident what materials might be required to meet ‘‘Making temporary repairs’’ as found in Table 155.4030(b) and, therefore, it is not reasonable to impose a set timeframe for having the materials available. The capability to provide this service should be included in an assessment of a salvage service provider, but having it mandated within a certain timeframe takes it out of the context of the salvage plan. The Coast Guard disagrees in part. We determined that having repair equipment ready and deployed on board a vessel in an emergency incident is important enough to merit its own timeframe for response.
We recognize that it is not possible to foresee every single material or tool that might be needed to make a temporary repair. However, we determined that a reasonableness standard can be applied to this provision, and it is absolutely possible to determine the materials and tools that are most likely to be needed for planning purposes.
Two commenters stated the response for ‘‘Diving services support’’ as found in Table 155.4030(b) may be a
progressive operation with the initial dive team arriving with necessary initial gear augmented by truckloads of additional equipment such as underwater welding, larger compressors, and decompression chambers; therefore, some unique constraints are placed on the travel methods for the dive team. The Coast Guard agrees that dive operations can be a lengthy process. However, the
response time ends when required support equipment and personnel are on scene in accordance with Table 155.4040(c)(1)(xii), and not when the diving support services operations start, so we have not amended the response time.
One commenter stated that getting the Salvage Master on-site is the key to the commencement and/or completion of many of the other services. The
commenter stated it is possible to begin the on-site assessment, at the furthest extent of their operating area, if there were eight hours instead of six. The commenter recommends the
requirement for this service be extended to at least eight hours. The Coast Guard agrees that getting the person
conducting the salvage assessment on board is critical, hence our six- or 12- hour timeframe, depending on whether the incident occurs within 12 miles or 50 miles offshore. Due to the company- specific nature of this comment we are not expanding the planning standard in this rulemaking. We acknowledge that some geographic areas will have a harder time meeting certain timeframes than others, and that in cases where it is actually or nearly impossible to meet the timeframes, we will consider waivers as allowed in Table 155.4055(g). 3. Timeframe Too Long
Two commenters stated that it is unacceptable to leave large sections of coastline along the western coast of Washington State and the Strait of Juan de Fuca exposed, asserting that they are not covered by requirements for timed responses, and that the Federal Government has a responsibility to protect the treaty rights of Puget Sound tribes in their usual and accustomed fishing areas. The Coast Guard
